Unified Patent Court Resource Center

The Unified Patent Court (UPC) and the European patent with unitary effect (Unitary Patent) are expected to launch in Summer 2023 and will revolutionize the way patents are enforced in Europe. Now is the time to prepare for the new system. McDermott’s Intellectual Property team is deeply familiar with the patent landscape in Europe and the United States and is well-positioned to advise clients on developing an appropriate UPC plan of action and integrating it with their broader international strategy.

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OVERVIEW

The goal of the UPC is to reduce the cost and complexity associated with enforcing patents in the EU Member States and to generally improve the patent system in Europe. A UPC decision on infringement, validity, injunction and damages will be enforceable in all participating states. The UPC will be the exclusive forum for actions relating to Unitary Patents. It will also be competent for traditional European patents, unless the European patent has been proactively opted out, and for supplementary protection certificates granted for European patents.

CAPABILITIES

The UPC provides many opportunities and potential benefits but, as a new court, it remains untested. We are here to advise clients and help them navigate any uncertainties. McDermott’s capabilities include:

Developing a Robust Cross-Border Strategy. We offer in-depth knowledge of our clients’ industries, including the technical, economic and regulatory environments, and can advise on both offensive and defensive strategies.
- Offensive. Our team can advise on whether the UPC is the right avenue for enforcement according to a client’s priorities and goals. When the time comes, we can prepare and file infringement and revocation actions in the UPC. We can also advise on whether US or UK litigation should be included in the enforcement strategy.
- Defensive. Our team is well qualified to advise on patents that may be at risk of central attack and products that may face heightened infringement risk by the new venue. We can also help manage those risks and defend against competitor attacks. If an action is filed, we can prepare the defense in the litigation.
- Opt-out. Our team can advise on whether opting out of the UPC is the right course of action. Below are just a few example reasons to consider.

EXAMPLE REASONS TO OPT-OUT	EXAMPLE REASONS TO NOT OPT-OUT
The patent or patent family is too valuable to risk central revocation in the 24 UPC Member States	EU-wide enforcement may add value
German bifurcation between infringement and invalidity proceedings increases the chances of obtaining an injunction more quickly	The patent or patent family is less valuable and therefore suitable for testing the UPC
The patent or patent family has already successfully survived European Patent Office opposition and is therefore more susceptible to central revocation	It will increase administrative time
A dispute with a licensing partner may lead them to enforce patents before the UPC and prevent you from opting out	Evidence gathered in one country can easily be used UPC-wide, so the UPC could result in lower litigation costs and (possibly) faster proceedings with damages claims in several UPC Member States

Unitary Patent Filings. Our team can assist with the strategy and paperwork for obtaining Unitary Patents and national patents.
- R&D and License Agreements. We can also advise on how to address existing or to-be-negotiated R&D and licensing agreements.

TIMELINE

The timeline below provides anticipated deadlines. It will to be updated as more information becomes available.

MEMBER STATES

UPC jurisdiction will cover all EU Member States that ratify the UPC Agreement. Seventeen countries will have ratified by the launch date while other countries may ratify in the future. The map below will be updated as more countries ratify.